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COVID-19: National State of Emergency now official, regulations gazetted

Employment Law , , ,

Government, represented by Cooperative Governance and Traditional Affairs Minister Nkosazana Dlamini-Zuma, has signed a off on measures to be implemented in response to the Coronavirus outbreak. These measures concern all government departments and it outlines their responsibilities to stop the spread of COVID-19. Included in these are regulations that will have a direct effect on the business owner/employer.

First among them is a prohibition on gatherings – meaning no more than 100 persons may be assembled whether this takes place in open air, in a building or at any other premises. If these gatherings will have alcohol/liquor sold for consumption on the premises, this prohibition limits the number of assembled people to less than 50 persons provided there is enough space. “Enough Space” is defined as at least 1-meter square per person.

This regulation affects any premises where people gather, including bars, taverns, shebeens, clubs, restaurants, event venues, etc.

The regulations are strict on the limitations on the sale, dispensing or transportation of alcohol/liquor.

  • All venues/premises that sell alcohol/liquor (bars, taverns, shebeens, clubs, restaurants, event venues) must be closed with immediate effect, or must not accommodate more than 50 people at any time. This is also dependent on whether there is adequate space for each person with respect to hygienic requirements and a limitation to the exposure of the persons to the possible spread of COVID-19.
  • Premises that provide accommodation as well as selling alcohol/liquor must implement measures to stop the spread of COVID-19, ensuring that adequate space is provided and that all directions in respect of hygienic conditions and limiting of exposure to persons with COVID-19 are adhered to.
  • No special or events liquor licenses will be considered during the national state of disaster.
  • All premises selling liquor must adhere to the following, limited, operating schedule:
    • Weekdays and Saturdays: Open from 09:00 and close at 18:00 (and must remain closed between 18:00 until the next morning 09:00)
    • Sundays and Public Holidays: Open from 09:00 and close at 13:00 (and must remain closed from 13:00 until the next morning 09:00)

Schools and partial care facilities have also been closed (including nurseries and creches). This places an extra burden on employee so still report for duty while often being in turmoil of having no one to look after their children during this time. Employers are encouraged to speak to employees and find a mutually beneficial working solution under these extra-ordinary times.

In these difficult times, business will feel the strain and employers will consider all possible avenues to limit damage and not to stop haemorrhaging capital. To this end, we recommend implementing short-time work schedules rather than retrenchments in order to future-proof your business as well as looking after the best interests of the employees that are dependent on them.

All notifications sent to employees regarding operational changes must be legally drafted in order to prevent later claims of unfair labour practice or dismissal. It is very strongly encouraged to engage the services of a labour law expert in this endeavour to prevent CCMA challenges.

Read the complete text:

 

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COVID-19: CCMA closure directive

Employment Law , , ,

As the country continues to institute processes to deal with the spread of the Coronavirus outbreak, the Commission for Conciliation, Mediation and Arbitration (CCMA) has decided to close all offices from Tuesday 18 March until Tuesday 14 April 2020 unless otherwise directed.

This is done in line with the directives received from the President and the Department of Health as well as the guidelines issued by the Department of Public Service and Administration and the protocols of the National Institute for Communicable Diseases.

This effectively means:

  • All contact processes (face-to-face meetings) are postponed – this includes all matters scheduled to take place from 18 March until 14 April, and no persons will be allowed to walk-in for enquiries or to deliver/serve processes or documents.
  • The CCMA will accept non-contact methods of communication such as email and fax.
  • Discretionary functions such as, but not limited to, training and conferences are postponed. (See exception.)
  • Pre-conciliation processes will continue as these are conducted via telephone.
  • Conciliations may continue if all parties agree to proceed via telephone.

To mitigate the pending backlog, Commissioners may attempt to resolve disputes using telephonic or online methods as approved by the CCMA.

It is important for all parties involved to not allow any perceived pressure (stated or otherwise) to influence their resolutions into premature settlements.

The normal processes of the CCMA will resume at the appropriate time, and cases that are unresolved at that time will be resumed and continued as normal.

Exceptions

In terms of discretionary functions of large scale dismissals and Inquiry by Arbitrator processes that are deemed to be in the public interested, the CCMA may approve a venue that is not in the CCMA offices provided such venues meet the required, strict conditions:

  • All Health and Safety directives, guidelines and protocols as listed (See above) are met.
  • All parties agree to this alternate venue in writing.

The CCMA will continue to asses the situation as it unfolds and take any additional steps or precautions as deemed necessary and will communicate any updates as they become available.

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COVID-19: Tips to keep the office healthy

Employment Law

There are some measures that an employer can implement and document into company policy to help mitigate the spread of any infectious disease in the work environment. The Occupational Health and Safety act places and obligation on the employer to maintain a healthy work environment. This means, in terms of the COVID-19 pandemic, that the employer has an obligation to manage the risk of contamination in the workplace.

Some suggestions include:

1. Providing sanitizing wipes / hand sanitizer

Placing sanitizing wipes / hand sanitizer at the entrances to an office or store and encouraging clients and customers to use the wipe and hand sanitizer as they enter, can help prevent the contagious germs from being carried into the work environment.

Company policy may be adjusted to include a provision that employees must clean their workstations with sanitizing wipes before starting their day as well as after lunch. Special emphasis should be placed on the following hotspots that are frequently touched:

  • Telephone
  • Light switch
  • Keyboard
  • Desktop
  • Mouse
  • Frequently used stationery and office supplies such as staplers
  • Door Handles

2. Handwashing intervals and guidelines

Hand washing is not only important after using the restroom, but also when moving around the office touching various surfaces. It is recommended to wash, with soap and warm water, for a minimum of 20 seconds. Scheduling handwashing intervals is an option to limit instances employees absentmindedly move about the office, touching surfaces, without washing their hands.

3. Implementing social distancing policies

Social distancing is just a fancy way of saying “avoid contact with other people.” Implementing policies restricting touch-contact, such as handshakes or hugs, can limit the transmission of communicable diseases.

4. Sickness at work

Every office has at least one employee that toughs it out no matter how sick he of she may be. This poses a significant threat to the health and wellness of fellow employees, clients and customers in the case of a interpersonal transmissible illness, such as the seasonal flu and COVID-19. Implementing a policy that requires an obviously sick employee to remain at home and not come to work may be required to curb this behaviour.

5. Special leave policy

As the COVID-19 infection spreads, many companies find themselves without a Special Leave policy. Special leave is a type of leave, separate from the BCEA entitlements (such as annual, sick, maternity and family responsibility leave.) This may need to be implemented should an employer deem it responsible to require an employee to go into compulsory quarantine.  Compulsory quarantine (as instructed by the employer or government) does not fall under sick leave unless a medical certificate has been issued. Such a quarantine absence may be deducted from either sick or annual leave entitlements. An alternative may be to allow employees to work from home, where practically possible.

We pray that you and your loved ones are kept safe and healthy through this time.

 

 

 

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COVID-19: The Employer’s Response

Employment Law

The President’s announcement on Sunday, 15 March 2020 has left many in the business sector confused as to the implications of the National State of Disaster declaration in response to the COVID-19 threat.

It is important to keep in mind that under the Occupational Health and Safety Act it places an express obligation on an employer to maintain a working environment that is safe and free from risk to the health of employees as far as reasonably practical. With regards to the COVID-19 pandemic, it means proactive management and mitigation of contamination in the workplace will have to be implemented.

The Act does not place sole responsibility on the employer to ensure a safe work environment, and employee’s bear an equal responsibility to preserve and maintain workplace safety and health. One way an employer can share this responsibility is by ensuring the employees are well informed and educated on the COVID-19 virus.

Information crucial to the mitigation of workplace infection is knowledge of the symptoms of the disease to be able to identify in themselves or colleagues individuals who may have contracted the illness. These include:

• Initial symptoms mimic the Common Cold
o Fever
   o Fatigue
   o Malaise
   o Body Aches
• Dry Coughing
• Shortness of breath

COVID-19 is a highly transmissible illness. For this reason, it is important to contain the spread of the virus. Steps that employers can implement include:

• Educating employees on the symptoms and precautionary measures:
o When traveling on public transport, to avoid touching the eyes, mouth or nose with unwashed or non-sanitized hands, avoid waiting for transport in large groups and minimize the amount of time spent in public transport.
o Avoid public spaces as far as possible until further notice, including restaurants, clubs, gyms and to minimize time shopping. Also avoid large gatherings including weddings, funerals, christenings and family gatherings. Government has placed a prohibition of gatherings of 100 people of more, but strongly encourages any multi-person gathering in the interim.

• Implementing workplace hygiene policies including procedures in the workspace regarding:
o Hand washing
It is recommended that employees are directed to wash their hands at regular intervals, with liquid soap and warm water, for a minimum of 20 seconds.
o Maintaining social distancing
Implementing interim steps such as conference calling/video conferencing instead of in-person meetings, a moratorium on physical contact greetings such as handshakes and/or hugs.
o Actively requiring sick employees (whether from a Coronavirus infection or other) to remain at home.

• Implementing work-from-home strategies where possible.
o This will depend on the requirements of the business, and the practicality of employees working off-site. Measures to consider is the safety of the employee while working at home, reliability of connectivity (including phone and WIFI connections), suitability of the task to remote working and demands of team deliverables.

Sick leave, paid leave or unpaid leave?

Currently there have been no announcements changing the entitlements of sick leave. This means that the policies remain as they are at present and will be applicable as follows:

• Annual leave remains as is, with the entitlements as determined by law. Employers are advised to monitor the number of employees present and able to perform tasks maintaining the core business, and to consult
with employees planning annual leave should staff availability suddenly change due to illness. Importantly, employers may not force employees to take annual leave to self-quarantine if the requirement for quarantine
is ordered by the company. Companies who impose quarantine on employees need to provide paid special leave or arrange work-from-home where possible.

• Sick leave also remains as currently determined by labour law. In short this means:
o An employee is entitled to 30 days sick leave per 36-month cycle. Sick leave days cannot be limited to 10 days sick leave per year/12 months.
o An employee may take sick leave for 2 consecutive workdays without a medical certificate. An employer may request a medical certificate if the employee takes sick leave twice in an 8-week period.
o Sick leave may not be used for mandatory quarantine purposes.
o If an employee requires sick leave and their sick leave entitlement is exhausted, an employee may take annual leave, or if also exhausted, may be granted unpaid leave.

Operational Requirements

There is no doubt that the current outbreak will have far-reaching economic implications, and employers may find themselves facing ongoing challenges during the outbreak. Many employers have already started considering retrenchment in a pre-emptive move to curb losses.

Section 189 of the Labour Relations Act 66 of 1995 allows for an employer to dismiss one or more employees due to operational requirements. “Operational requirements” is defined as requirements based on the economic, technological, structural or similar needs of the employer.

Retrenchment is a no-fault end of employment on the part of the employee. In the current circumstances, it cannot be used to terminate ill employees as the recovery/isolation period is 14 days. However, should many employees be absent due to illness, an operational need may arise.

Two scenarios that are already becoming problematic are:
1. Employees refusing to come to work in fear of contracting the virus
2. Business unable to operate due to stock shortage

In both scenarios, prudence is advised as employers are encouraged to accommodate employees without placing undue burden on the business. Employers may consider, after consultation with employees, to offer extended unpaid leave in both scenarios. In the case of stock shortage or other operational limits that may be deemed as short-term due to the outbreak, employers can consider activating short-time (shortening the work week) or part-time work at reduced pay. In all cases, employment is not terminated but resumption of full duties is made contingent on the requirements of the business as well as risk of infection to employees.

An employer considering disciplinary steps in the case where an employee is absent without leave for any length of time, where the employee alleges illness or quarantine, the  employer must use incapacity investigations and procedures to determine the veracity of the claims, and where found to be invalid, follow fair procedures to apply the correct sanction.

Should you need any additional advice or clarity please feel free to contact your Joblaw office.

We pray that you and your loved ones are kept safe and healthy through this time.

 

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The Perpetual Independent Contractor

Employment Law , , , ,

In South Africa a president has taken hold of the employment sector where employers engage the services of an employee without formalizing their relationship in a written contract, believing that in so doing they are circumventing the Labour Relations Act (LRA). This, they believe, makes their employees “Independent Contractors” and they are thus not liable for any protections and entitlements under the LRA.

It is important to note that in defining an “employee,” the act makes no mention of a “contractor” or anything other than an “employee.”

Section 1 of the LRA defines an “employee” as:

Any person, excluding an independent contractor, who works for another person, or for the State, and who receives, or is entitled to receive, any remuneration, and any other person, who in any manner, assists in carrying on or conducting the business of an employer.

Section 200A of the Act continues, stating that an employee is:

A person who works for, or renders services to, another person, is presumed, until the contrary is proved, to be an employee, regardless of the form of the contract, if any one or more of the following factors is present:

i. The way the person works is subject to the control or direction of another person,

ii. the person’s hours of work are subject to the control or direction of another person,

iii. in the case of a person who works for an organisation, the person is a part of that organisation,

iv. the person has worked for that other person for an average of at least 40 hours per month over the last three months,

v. the person is economically dependent on the other person for whom that person works or renders services,

vi. the person is provided with tools of trade or work equipment by the other person, or

vii. the person only works for or renders services to one person.

The independent contractor is not a contract of employment at all, rather it is a contract of work and can be defined as the hiring/letting of piece work in a mutual contract where the independent contractor undertakes to create, build or repair a material thing within a certain period in return for which the employer agrees to pay an agreed upon reward in return.

In South Africa, common law recognizes the distinction between a contract of service (where the party provides a service in subordination to the authority of the employer) and a contract for service (where the party provides a non-subordinated service only answerable to the service deliverables contracted).

South African courts are not bound by the terms or labels used by the parties used in establishing the service relationship. In other words, stipulating in the contract of service that a party to the agreement is an “independent contractor” when in reality the relationship is that of an employer-employee will not sway the courts to view the relationship as anything other than an employment relationship, as in the case where an employee works more than 24 hours in a month – even with a contract that states otherwise – will be seen as an appointed permanent employee.

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